The American public firmly believes both in the rule of law and in the progressive and beneficial effects of science. Public opinion polls show that legal and scientific institutions continue to command wide respect, even in a period of diminished trust. According to a recent survey conducted by the Office of Technology Assessment (OTA), the Supreme Court and the scientific community each received higher confidence ratings than political institutions, the media, education, and even organized religion. Yet the impacts of science and the law can at times be profoundly antithetical, for the former acts as a force for social transformation, while the latter seeks to maintain the stability and continuity of societal institutions and norms of conduct. Vannevar Bush's famous metaphor “the endless frontier“ captured the sense of limitless aspiration associated with science and technology through much of this century.

I propose to survey briefly 16 of the Supreme Court's “Law and Psychiatry” decisions in the decade and a half from 1972 through 1986. I shall emphasize Justice Harry Blackmun's role in these decisions, his votes and his opinions.

Justice Blackmun's changing “social vision” on the court has been much discussed. It has even been examined quantitatively in a Harvard Law Review student note. This note measured his shift over time from voting with Burger and Rehnquist to voting with Brennan and Marshall. The lines of this graph cross in 1981, and 16 cases I have selected confirm this change. The 16 law and psychiatry cases are listed in Chart 1 below in chronological order. There were 8 cases before 1981 in which Justice Blackmun consistently voted with Burger and Rehnquist. There were 8 cases after 1981 in which Justice Blackmun consistently voted with Brennan and Marshall.

The American Society of Law and Medicine has chosen to honor Associate Justice Harry A. Blackmun of the United States Supreme Court with its first Presidents’ Award for Distinguished Contributions to the Fields of Law and Medicine. It is my task to explain why that honor is so richly deserved.

To me the answer is simple: as much as any other judge in our Nation's two hundred-year constitutional history, Harry Blackmun has shaped and defined our modern conception of the constitutional right to privacy, as well as our developing notions of the scope and limits of medical privacy. During his twenty-eight years on the federal bench and his seventeen years on the Supreme Court, Justice Blackmun has played a major role in rebalancing what I call “the medical triad” — the triangular relationship among the patient, the doctor and the state, with which this Society's members are so intimately familiar.

The age of empirical jurisprudence appears to be upon us. At both trial and appellate levels, empirical data are playing ever more prominent roles in civil and criminal adjudication. Expert witnesses were once confined to a narrow class of forensic scientists. Today psychologists, sociologists, statisticians, and other empirical researchers regularly testify in court. Lawyers aware of the value of using empirical argument hire expert witnesses to discuss and dispute vast bodies of data often generated precisely for the purpose of influencing legal decision-makers.

Courts are continually being asked to settle broad issues of social policy, many of which turn on empirical analyses of the effects of actual and proposed statutes, regulations, and judicially-generated rules. As a result, the use of data-oriented arguments continues to grow. Scholars are looking for change in the traditional structures for regulating the introduction of data into evidence, and have proposed innovative procedures that recognize the potential contributions of empirical results.

As Hippocrates said to one of his students: “Let your best means of treating people be your love for them, your interest in their affairs, your knowledge of their condition, and your recognized attentiveness to them.“ A physician who is guided by this teaching must be a very caring person. He or she must care deeply about people. To care, in this sense, means to be troubled about the troubles of others. He or she must also care about being a good doctor, about being competent in all relevant respects. I believe that all thoughtful people want such women and men as their personal doctors. We want our doctors to be caring persons, to be attentive to our needs and responsive to our concerns. When our doctors talk with us, we hope that they will speak to the unique individuals we each correctly believe ourselves to be.